Last month, an appeals court panel denied on procedural grounds a petition filed by NBAA and others that sought to overturn the controversial agreement allowing Santa Monica city officials to shorten the sole runway, which restricts aviation operations at SMO, as well as the option to close the airport after 2028.

Petitioners asserted the FAA overstepped its powers in reaching the settlement agreement and attempted to circumvent requirements established by Congress for judicial review of agency decisions.

The DC Circuit panel determined the settlement agreement did not constitute “final agency action” that was reviewable by the court and did not evaluate the petition on its substance, NBAA officials reported.

The runway at SMO. (Photo courtesy NBAA)

The en banc petition challenges that ruling by citing decisions in multiple cases before the U.S. Supreme Court and the DC circuit court that held that final agency orders should be given a broad definition, and further emphasized the importance of the availability of judicial review of agency decisions.

“If allowed to stand, [the panel’s decision] demarks a path by which agencies may enter final orders without them being subject to Circuit review, defying the intent of Congress and well-established precedent that agency decision-making is presumptively reviewable,” the petition reads.

On July 24, 2018, NBAA also filed a separate complaint in the U.S. District Court of the District of Columbia pursuant to procedure allowing plaintiffs to ask that court to rule upon FAA actions plainly outside the agency’s scope.

The filing seeks a declaratory judgment and injunctive relief holding that the FAA acted beyond its jurisdiction in reaching the settlement agreement.

The complaint further asserts the FAA failed to follow several established procedures in reaching its determination that keeping SMO open was not “necessary to protect or advance the civil aviation interests of the United States,” a position that also contradicts the agency’s mission.

NBAA President and CEO Ed Bolen noted such legal precedents carry implications far beyond a single threatened airport and this unprecedented FAA settlement.

“Our association has long advocated for, and fought to preserve, access to our nation’s airports and airspace,” said Bolen. “Not only will NBAA continue fighting to preserve this vital Southern California airport, but we also feel we have a duty to stand up when we believe the FAA has exceeded its authority, and to ensure the court recognizes that the FAA and other government agencies cannot be shielded from judicial review.”

Other petitioners to the court in these filings include the Santa Monica Airport Association, Bill’s Air Center, Kim Davidson Aviation, Redgate Partners, and Wonderful Citrus.

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